Brickner v. Hawryliw et al., 2015 SKQB 5

• Judge: R.S. Smith, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 06, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKQB 5;(2015), 464 Sask.R. 308 (QB)

Brickner v. Hawryliw (2015), 464 Sask.R. 308 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JA.036

Jared Brickner and Kendra Brickner (applicants) v. Fred Hawryliw and Office of Residential Tenancies (respondents)

(2014 QBG No. 1507; 2015 SKQB 5)

Indexed As: Brickner v. Hawryliw et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

R.S. Smith, J.

January 6, 2015.

Summary:

In April 2013, a hearing officer determined that the landlord had proven his claim against the tenants arising from termination of the lease. The tenants had not attended the hearing. In August 2013, the tenants became aware of the decision and appealed. The appeal was out of time. The tenants sought return of their security deposit and the landlord sought further damages. A hearing was held in December 2013. The tenants asserted that they had never been served with notice of the April 2013 hearing. The hearing officer concluded that service had taken place. Acton, J., dismissed the tenants' appeal. The tenants applied for judicial review of the hearing officer's decision.

The Saskatchewan Court of Queen's Bench dismissed the application.

Administrative Law - Topic 3302

Judicial review - General - Bars - Alternate remedy - In April 2013, a hearing officer determined that the landlord had proven his claim against the tenants arising from termination of the lease - The tenants had not attended the hearing - In August 2013, the tenants became aware of the decision and appealed - The appeal was out of time - The tenants sought return of their security deposit and the landlord sought further damages - A hearing was held in December 2013 - The tenants asserted that they had never been served with notice of the April 2013 hearing - The hearing officer concluded that service had taken place - Acton, J., dismissed the tenants' appeal - The tenants applied for judicial review of the hearing officer's decision - The Saskatchewan Court of Queen's Bench dismissed the application - The court agreed with the tenants that the discretionary remedy of judicial review was available even in the context of the residential tenancies proceeding and even though the Residential Tenancies Act provided for adequate appeal procedures - However, courts were hesitant to interfere where there was an adequate appeal process - At its core, the tenants' complaint was that the hearing officer did not believe the tenant when he said he was not served - That was not sufficient to trigger the extraordinary remedy of judicial review.

Administrative Law - Topic 7096

Judicial review - Bars - Discretionary bars - Existence of adequate alternative remedy - [See Administrative Law - Topic 3302 ].

Landlord and Tenant - Topic 7161

Regulation - Judicial review - General - [See Administrative Law - Topic 3302 ].

Cases Noticed:

Geml v. Cope et al. (2013), 414 Sask.R. 43; 575 W.A.C. 43; 2013 SKCA 39, refd to. [para. 5].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 12].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 276 D.L.R.(4th) 233; 2006 ABCA 282, refd to. [para. 17].

Counsel:

Nicholas R.S. Blenkinsop, for the appellants;

Naheed Bardai, for the respondent.

This application was heard by R.S. Smith, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on January 6, 2015.